Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02266/2016

THE IMMIGRATION ACTS

Heard at Glasgow on 19 April 2017
Determination issued

21 April 2017
Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

R A
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Maguire Solicitors (Scotland) Ltd
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a Kurdish citizen of Iraq, born in 1995.
2. The respondent’s letter refusing his protection claim, dated 23 February 2016, rejects his account of being targeted by the family of a girl with whom he had a relationship (almost entirely by telephone). It was accepted that his home area, Makhmour, was contested. It was found that he could relocate within the KRG (also referred to as the IKR).
3. FtT Judge Farrelly dismissed the appellant’s appeal by decision issued on 7 February 2017. At ¶30 the judge said there had been advances in the security of his home area. The situation in Baghdad was “not at a level where his return would not be considered feasible”. His prospects in the IKR were “more promising”. He could relocate, “most likely to the IKR”.
4. The ground of appeal to the UT is error on internal relocation, subdivided into:
(i) no or insufficient evidence of preclearance by the KRG authorities to enter the KRG;
(ii) error in relation to return to Baghdad; appellant not able to fly to Erbil, and so would be in Baghdad for a prolonged or indefinite period;
(iii) no clear finding whether internal relocation to Baghdad would be reasonable; and
(iv) no assessment of all factors relevant to relocation to Baghdad: appellant speaks little Arabic, has no ties there, and is more likely to be targeted for kidnapping and suspected as a supporter of Sunni extremist groups.
5. A rule 24 response by the SSHD to the grant of permission runs thus: the judge found that the appellant previously had identification documents and could reacquire them; cogent reasons on relocation to the IKR; a finding on reasonability of relocation to Baghdad was also made, and is not affected by the observation on better prospects in the IKR.
Submissions for appellant.
6. There was nothing to add to (i).
7. The FtT did not grapple with the practicalities of travel from Baghdad to Erbil, a relevant factor in terms of AA Iraq CG UKUT 00544. The judge noted that there are regular flights from Baghdad to Erbil, but did not assess their practical availability to the appellant.
8. If unable to travel from Baghdad to Erbil, the case depended on ability to relocate in Baghdad. Even if there was a finding on that, there was no assessment of the factors established as relevant in AA. The judge recorded at ¶2 the appellant’s evidence that he speaks little Arabic, at ¶22 his evidence that he no longer has documentation, and at ¶29 his evidence of inability to contact friends and family in Iraq, but made no findings on those points.
9. The case should be remitted to the FtT for full rehearing, with a view to clear findings being made about language, family, identification, and travel possibilities.
Submissions for respondent.
10. As to (i): as set out at headnote 17 of AA, the respondent would return [directly, on an “EU letter”] to the IKR only those originating from there and who had been pre-cleared with the IKR authorities, for which no passport, expired passport, or laissez-passer was required.
11. Returns to Baghdad take place only on a passport, expired passport, or laissez-passer, which involves pre-clearance with the authorities and hence confirmation of Iraqi identity (¶71 and 150 of AA).
12. AA was no authority for propositions that the respondent had to prove at hearings in the FtT that pre-clearance had been obtained, or that any form of pre-clearance was needed to travel internally, from Baghdad to the IKR.
13. The judge noted at ¶24 and 25 the availability of travel from Baghdad to Erbil, and cited appropriately from AA at ¶26 and 27. The latter citation is of the 3 factors relevant to further relocation (to the IKR): (a) practicality of travel, (b) likelihood of securing employment and (c) availability of assistance from friends and family in the IKR. Point (a) was resolved by the earlier references and again at ¶30. Points (b) and (c) were answered at ¶29 and 30. Any lack of specification in the factual findings was resolved by the overall conclusion.
14. There was a finding in relation to relocation in Baghdad, but perhaps an absence of assessment of the relevant factors; however, on the finding in relation to the IKR, grounds (iii) and (iv) fell away.
Reply for appellant.
15. The central points were whether the appellant lacks documentation on which to be returned, and whether if he has no documentation he qualifies for protection, issues on which AA is under appeal to the Court of Appeal. The judge failed to make findings on those issues and on the factors relevant to relocation in the IKR. Such findings could not be read into the decision.
Discussion and conclusions.
16. In terms of AA, and as a matter of principle, there is no obligation on the respondent to prove preclearance or any other mechanism of return in an individual case at the hearing of an appeal by the FtT.
17. The appellant made no case why, consistently with AA, it might be difficult for him to re-enter the IKR via Bagdad. That does not involve preclearance from the authorities of the IKR. The judge correctly noted that travel is available. Once in Baghdad, there is nothing to stop the appellant from using it.
18. It was for the appellant to establish the facts on which any claim to protection depends, including alleged absence of or difficulty in obtaining documentation, so far as that might assist him. He failed to do so.
19. The judge might have been more specific in his findings about documentation and family contacts, rather than simply recording the appellant’s claims and reaching overall conclusions. However, at ¶22 the judge said that with the help of his mother, aunts and uncles the appellant could obtain replacement documentation and his travel could be facilitated, so clearly his alleged inability to make contact was rejected as part of rejection of general credibility. Resolution of all factors relevant to relocation is to be read in this way.
20. There is some substance to ground (iv), but even if that assessment might have gone in the appellant’s favour, it matters not. The case is decided by the availability of relocation to the IKR.
21. (From general public sources referred to in other cases in the UT, it seems that although the appellant’s home was in a contested area at the date of the respondent’s decision the situation had changed by the date of the hearing in the FtT and has changed further since, such that it may no longer be considered a contested area. There were no submissions on that matter in this case, so these observations are made incidentally and for any future relevance they may have.)
22. The determination of the First-tier Tribunal shall stand.
23. An anonymity direction was made in the FtT. There does not appear to be any reason for that, but as the matter was not addressed in the UT this determination refers to the appellant only by initials.

20 April 2017
Upper Tribunal Judge Macleman